Answer by Neha Sharma, Hillsdale 2036 NSW

• In New South Wales as a general rule you should be aware that a doctor cannot provide medical or dental treatment to a person under 16 years or older (if they are unable to give consent) unless they have obtained substitute consent under the Guardianship Act 1987 (NSW) or the treatment is authorised under the Act as one that does not require consent.
• Note that for most emergency cases a doctor or dentist is legally permitted to carry out a treatment without first obtaining substitute consent if they consider the treatment imperative (absolutely and immediately necessary) for saving their patient’s life or preventing serious damage to their patient’s health.
• The Guardianship Tribunal has the jurisdiction to grant substitute consent for special medical treatments such as a treatment that is carried out for the purpose of terminating pregnancy.
• Any treatment that involves substantial risk to the patient is considered as a major treatment requiring written consent from the person responsible for the patient.
  • For a minor their guardian is the person responsible.
  • If the adult patient has a valid enduring guardianship agreement the person listed as the enduring guardian has the decision-making authority.
  • If there is no enduring guardian the following hierarchy generally follows:
    • spouse including de facto spouse;
    • carer who provides voluntary care to the patient;
    • the Director-General under section 13 of the Guardianship Act 1987 (NSW); and
    • in all other cases the Guardianship Tribunal.

• If the appointed person refuses the treatment and you still believe that it is in the best interests of your patient to receive that treatment you should refer the matter to the tribunal and seek consent.

• Some minor treatments such as administrating first aid and conducting a non-intrusive examination do not require substitute consent.